Ruling On Kuenzel With Roy Moore Dissent
Ruling On Kuenzel With Roy Moore Dissent
Ruling On Kuenzel With Roy Moore Dissent
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
BRYAN, Justice.
1141359
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
1141359
MOORE, Chief Justice (dissenting).
William Ernest Kuenzel has been on death row in Alabama
since 1988. He was convicted of murder for the killing of
Linda Jean Offord, a convenience-store clerk. The murder was
made
capital
because
Offord
was
killed
during
an
armed
driver's
seat
and
an
unidentified
man
in
the
front
1141359
store approximately an hour before the murder and that she saw
Venn
and
Kuenzel
identification,
Kuenzel.
inside
the
Alabama
the
evidence
requires
was
that
store.
Without
insufficient
accomplice
to
Harris's
convict
testimony
be
corroborated:
"A conviction of felony cannot be had on the
testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with
the
commission
of
the
offense,
and
such
corroborative evidence, if it merely shows the
commission of the offense or the circumstances
thereof, is not sufficient."
12-21-222,
Ala.
Code
1975
(emphasis
added).
The
747
(1923).
In
the
absence
of
the
corroboration
1141359
The Alabama Court of Criminal Appeals on direct appeal
found Harris's corroboration testimony adequate to satisfy the
statute:
"Excluding Venn's testimony, the evidence shows
that the murder was committed shortly after 11:00
p.m. April Harris testified that she saw Venn's car
at the store between 9:30 and 10:00 p.m. and that
she saw both Venn and [Kuenzel] inside the store at
that time. Other witnesses testified that Venn and
an unidentified white male were at the store sitting
in Venn's automobile around 10:00 or 10:30 p.m. In
our opinion, this testimony, while certainly not
overwhelming, was sufficient to corroborate Venn's
testimony and to satisfy the requirements of
12-21-222."
Kuenzel v. State, 577 So. 2d 474, 514 (Ala. Crim. App. 1990),
aff'd, 577 So. 2d 531 (Ala. 1991).
I
question
whether
the
corroboration
evidence
was
evidence
there
is
sufficient
inculpatory
evidence
Leaving
out
Venn's
testimony,
the
only
evidence
1141359
murder of Offord is Harris's drive-by sighting of Venn and
Kuenzel in the convenience store an hour or more before the
crime. Though one might speculate from this evidence that
Kuenzel was involved in the crime, the sighting is also
consistent with his innocence. "Corroboration, to be legally
sufficient,
must
be
unequivocal
and
of
substantive
1141359
Tidwell v. State, 37 Ala. App. 228, 230-31, 66 So. 2d 845, 847
(1953).
One's presence in a convenience store at 9:30-10:00 p.m.
is not of itself unusual. Although connecting Kuenzel to the
place of the crime, his presence there does not connect him to
the crime itself or the time of its occurrence, which was
after 11:00 p.m. "[M]ere presence at the scene of the crime is
not enough to support a conviction." Ex parte Smiley, 655 So.
2d 1091, 1095 (Ala. 1995). Corroboration evidence "must tend
to connect the defendant with the crime or point to the
defendant,
as
distinguished
from
another
person,
as
the
1141359
precluded by the rule against successive petitions, Rule
32.2(b), Ala. R. Crim. P., and the bar against raising issues
in a Rule 32 petition that have already been decided on direct
appeal. Rule 32.2(a)(4), Ala. R. Crim. P. However, Kuenzel
does not seek review of the trial evidence. Instead he argues
that he wishes to present "newly discovered material facts,"
Rule 32.1(e), Ala. R. Crim. P., that require reversal of his
conviction. The evidence he proffers as newly discovered is
grand-jury testimony of April Harris, first disclosed in 2010,
that, he claims, indicates she could not identify Kuenzel as
the man she saw in the convenience store on the night of the
murder. Because the discovery of this evidence occurred over
two decades after Kuenzel's conviction, his only procedural
route for bringing that evidence before the circuit court for
a hearing was a new Rule 32 petition filed within six months
of discovery of that evidence. Rule 32.1(c), Ala. R. Crim. P.
Kuenzel filed his current Rule 32 petition in September 2013,
long past the six-month filing deadline.
That deadline, however, is not jurisdictional and in
extraordinary
circumstances
may
be
disregarded
under
the
1141359
896-98 (Ala. 2007). In general "equitable tolling is available
in
extraordinary
circumstances
that
are
beyond
the
newly
proceedings
discovered
concluded.
The
evidence
Court
of
until
the
Criminal
federal
Appeals,
In addition to the disclosure in 2010 of Harris's grandjury testimony, Kuenzel also claims that he became aware of
other exonerating evidence at that time.
9
1141359
limitation period unfair" and whether the petitioner has
"exercised reasonable diligence in investigating and bringing
[the] claims."'" Ex parte Ward, 46 So. 3d at 897 (quoting Fahy
v. Horn, 240 F.3d 239, 245 (3d Cir. 2001), quoting in turn
Miller v. New Jersey Dep't of Corr., 145 F.3d 616, 618 (3d
Cir. 1998)).
A significant consideration, I believe, in assessing the
equities in this matter is that Kuenzel's first Rule 32
petition, filed in 1993, was never heard on the merits because
of another missed deadline. Kuenzel's attorney at that time
apparently measured the time for filing his first Rule 32
petition from the denial of a petition for the writ of
certiorari by the United States Supreme Court rather than by
this Court. See Kuenzel v. State, [Ms. CR-13-0899, July 10,
2015] ___ So. 3d ___, ___ (Ala. Crim. App. 2015). Ultimately
the trial court dismissed that petition as time-barred and
thus
did
not
hold
an
evidentiary
hearing.
Id.
Kuenzel
10
1141359
beyond a reasonable doubt.'" Kuenzel v. Commissioner, Ala.
Dep't of Corr., 690 F.3d 1311, 1315 (11th Cir. 2012) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Kuenzel's counsel apparently delayed filing his second
Rule 32 petition in state court until the conclusion of the
federal proceedings. The current petition was filed September
23, 2013, four months after the United States Supreme Court
denied Kuenzel's petition for a writ of certiorari in his
federal case. Kuenzel v. Thomas, 569 U.S. ___, 133 S. Ct. 2759
(2013). Because that petition has now also been defaulted,
Kuenzel
has
never
had
an
opportunity
to
present
original
state-court
default
adversely
affected
his
mistakes
have
not
been
found
to
rise
to
the
11
1141359
constitute an extraordinary circumstance that could justify
granting him relief from his second default.
Another
consideration
may
reinforce
this
argument.
12
1141359
examine whether he qualified for equitable tolling of the sixmonth
filing
evidence.
deadline
Because
the
for
presenting
transcript
of
newly
discovered
Harris's
grand-jury
application
of
the
accomplice-corroboration
13